In an internal draft of a rules change, the commission argues official time to work on EEOC complaints should be subject to agency collective bargaining negotiations, despite statutory protections.
The Equal Employment Opportunity Commission is preparing to publish a proposed rule that would exempt federal employee union officials from being guaranteed official time to work on EEOC complaints, a move that would upend more than 40 years of precedent and could violate the statute establishing the commission.
According to a copy of the regulations labeled “DRAFT-DELIBERATIVE” and obtained by Government Executive, officials at the agency, which handles accusations of employment discrimination both at federal agencies and in the private sector, argue that the commission should defer to individual agencies’ collective bargaining agreements regarding whether a union representative should receive official time.
“Since union official time did not exist in statute until 1978, there was no reason for the [Civil Service Commission’s] original EEO procedures to address union official time when it first published the regulation in 1972,” the document states. “However, in its subsequent modifications of the EEO procedures, the commission has not expressly addressed the availability of ‘reasonable’ official time to union officials or how the commission’s official time regulation for EEO proceedings interacts with the [federal labor-management relations statute]. The commission now proposes to amend [the regulations] to exclude union representatives from its grant of reasonable official time for EEO proceedings.”
The EEOC declined to comment, citing the deliberative process.
The draft rule could effectively deny union representatives the right to official time to work on EEO complaints, but grant official time to non-union employees for the same purpose, despite the fact that the statute provides broad leeway to a complainant to choose another federal worker as his or her representative during EEOC proceedings.
“If the complainant is an employee of the agency and he designates another employee of the agency as his or her representative, the representative shall have a reasonable amount of official time, if otherwise on duty, to prepare the complaint and respond to agency and EEOC requests for information,” the law states.
Suzanne Summerlin, general counsel for the National Federation of Federal Employees, said the draft rule, if formally proposed, would be a “highly inappropriate” attempt to perform an end-run around established federal employment law.
“I am very highly suspicious that that is an appropriate way to change the will of Congress,” she said. “It’s truly baffling the lengths that they’ll go to to infringe on the rights of workers, especially when in the Me Too era, workplace discrimination is on the forefront of everyone’s minds. To take away the ability for employees to discuss discrimination cases, advise each other and bring them before the EEOC, it’s truly beyond the pale.”
Robert Tobias, director of business development for the Key Executive Leadership Program at American University and former president of the National Treasury Employees Union, said the proposed rule change could have the effect of the EEOC trying to dictate to employees whom they can and cannot choose to represent them, which would violate the statute.
“What right do they have to choose who I choose as my representative?” Tobias asked. “If I choose a union rep, their law doesn’t give them the right to determine who I choose. I don’t think they have the authority to prohibit or discourage an employee from selecting a union representatives. The law is clear in that it allows an employee’s representative to get official time. It allows me to appoint someone, and that someone gets official time.”
If implemented, the rule change would amount to the end of union officials’ ability to represent employees in adverse personnel action cases without taking leave without pay. The recent implementation of three controversial workforce executive orders instructs agencies to strip union employees of official time in instances where they represent workers in internal grievances or adverse action appeals. Official time for cases before the Merit Systems Protections Board remains statutorily protected, but the board has lacked any confirmed members since March, and has lacked a quorum for more than two years.